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Occasionally, I will mention my job, my public service activities, and other aspects of my life to offer my readers a better perspective on where I'm coming from. But to be clear:

"The views that I express represent my own opinions, based on my own education and experience, not the opinions of any other entity, party, or group to which I belong. I give these opinions in my individual capacity, as a private citizen, and as someone who gives a good gosh darn about his community, his country, and the truth."

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Monday, December 13, 2010

Judge Hudson Reminds Me: We Need Single-Payer!

I am not fond of the health insurance mandate included in the Patient Protection and Affordable Care Act. I agree with Michael Moore that people aren't cars. If health insurance is so important that it warrants a government intervention in the free market as drastic as the insurance mandate introduced to us by Republican Mitt Romney in Massachusetts, then we should skip the middle man and move straight to a universal single-payer system that would guarantee coverage for every American.

Hudson rules on two key points. He accepts Virginia's argument that the enforcement of the insurance mandate is a penalty, not a tax. That may not matter to the average citizen—either way, it's money out of your pocket—but it matters to the court and the Constitution. If it's a tax, then Congress can act under the General Welfare Clause, and pretty much every court challenge to health care reform ends. If it's a penalty, then Congress is acting under the Commerce Clause.

That's where things get interesting. Virginia's challenge, like others, hinges on the idea that Congress act under the Commerce Clause to compel people to participate in interstate commerce by buying health insurance. The federal government says everyone eventually participates in the health care "market," and choosing not to buy health insurance shifts costs to everyone else in the market, so federal requirements to maintain financial responsibility for one's own health care via insurance are justified regulation of interstate commerce. Judge Hudson sides with Virginia: he says the government can regulate activity but not inactivity.

Yet state and local governments apparently retain the authority to regulate a host of other economic inactivities. South Dakota still penalizes you for not buying car insurance. The sheriff will nab you for vagrancy if you don't buy or rent a domicile of some sort, and the city or county will come after you again for nuisance violations if you don't engage in enough economic activity to maintain that domicile sufficiently. We punish parents if they don't purchase sufficient food, clothing, and shelter for their children. And not that I need much persuading, but the government will get on my case if I don't engage at some bare minimum in the clothing market.

Judge Hudson's ruling does not threaten state insurance mandates; Hudson appears concerned only with "unbridled exercise of federal police powers."

But the ruling brings me back to my basic argument for a universal single-payer health insurance system. Insurance works better when you get more people in the pool to share the risk. The best insurance possible would be the biggest pool possible: all 307 million Americans in one big pool. We all pay for one big army to protect the entire country from invaders and terrorists and other disruptive forces. We could all pay for one big army of doctors to protect us from the physical and economic devastation of disease and injury.

9 comments:

your examples of government regulating inactivity are all state laws and state actions to regulate it - you aer proving the state of Virginia's point. See - you are an effective advocate - and deep down a conservative :)

But Lee, does that mean that all the conservative squawking about government intrusion in our lives is really only opposition to action by the federal government? Is the conservative line really that Mitt Romney's state mandate is perfectly fine, while the identical federal mandate is unacceptable? If you could show me that the 50 states could enact their own identically intrusive versions of the federal health coverage act and that Kristi Noem and the other repeal-shouters wouldn't flip, I'd be... impressed with their commitment to strict interpretation of the Constitution.

the Judge does law, not politics. He was referencing a specific provision in the US Constitution. You claimed he was in error, using examples that proved his point - under the Constituitional provision. Now, when faced with that reality, you shift to argue that some how his interpretation is justified if every state acts the way you want them to act. I'm not advocating any system, Cory, I'm just pointing out what the Judge says the provision in the law means. Your argument is a ship passing in the night on that point - but I understand it is part of your continued advocacy for your health care position. Your argument just doesn't prove your point -- the negative wins the flow :) Lee S

I accept, Lee, that the judge is making a purely legal, not political, argument. I did not claim he was in error. Were I filing amicus curiae, I would wage a an argument beyond analogy to state law. Were I Secretary Sebelius or President Obama, I would drop the silly tax-not-penalty line and focus on the activity-inactivity distinction the judge leans on (choosing not to buy insurance is an economic activity with consequences for a warped market that depends on mass participation). Or I would just drop the case, impose a new tax, and offer a robust public health insurance option.